What are the most important issues in international criminal justice today?

Unimaginable Atrocities

While human history is not without crime and slaughter, it is only in the twentieth century, especially following the Nuremberg and Tokyo trials, that people sought justice in the name of all humanity. To mark the World Day for International Justice we invited our authors and editors to answer the question: What do you consider to be the most important issue in international criminal justice today?

“The impression that international justice is a tool of powerful States directed against smaller, weaker, poorer, and more isolated countries and peoples is the greatest challenge to international criminal justice today. Some of these large, powerful nations are themselves guilty of terrible abuses that go unpunished. For example, the United States enthusiastically joins in efforts to prosecute Hissène Habré in Senegal under the Torture Convention, yet its administration has promised impunity to American leaders and military officials responsible for torture at Abu Ghraib, Guantanamo, and elsewhere. Until international justice satisfactorily addresses this double standard, there will be little satisfaction in more trials of the likes of Taylor, Lubanga, and Mladić. For this reason, the most inspiring development of the past year was the decision of the Prosecutor of the International Criminal Court to undertake a preliminary examination of the conduct of British forces in Iraq.”
— William Schabas, Professor of International Law, University of Middlesex, and author of Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2014)

“In my view, it is time to begin to question whether the International Criminal Court will ever play a major role in the fight against impunity. This is not an issue of bad management, poor decision-making, or anything else epiphenomenal and potentially fixable. Instead, it’s a question of institutional design: it is simply unclear whether the Court, by aiming to keep watch over both the victors and the vanquished, will ever be able to muster the kind of international support – from states, and most importantly from the Security Council – that it needs to conduct credible investigations and prosecutions. There is reason for scepticism, given the Court’s inability to prosecute both rebels and government officials in even one conflict. Indeed, it’s difficult to avoid wondering: for all its flaws, is victor’s justice the only international criminal justice possible? Is selectivity an inherent part of an international criminal tribunal that works?”
— Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London, and author of The Hidden Histories of War Crimes Trials (2013)

“States need to overcome their alienation from international criminal justice. After the euphoria that allowed for the ‘Pinochet Saga’ to happen and led to the establishment of the International Criminal Court, states’ priorities, unfortunately, seem to have shifted – hardly surprising in times of financial crisis or mass surveillance. However, states still are and will ever be the backbone of the international criminal justice system – and this explicitly includes the so-called ‘third’ or ‘bystander’ states acting on the basis of universal jurisdiction. It’s in particular their role within the international criminal justice system that needs to be redefined by determining the parameters for complementarity and subsidiarity.”
— Julia Geneuss, Dr. iur., LL.M. (NYU), Senior Research Fellow and Lecturer at the University of Hamburg, and member of the Editorial Committee of the Journal of International Criminal Justice

“International criminal law has long chased the dream of permanence. Its foundations at Versailles and Nuremberg and its revival in the 1990s were acts of ad hockery, and in those contingent acts the failings of justice ad et post hoc were apparent; a permanent court, we thought, might fix them. We have now had a decade and more of permanence, and with it a severe testing of that hope. Courts for Sierra Leone and Lebanon, and calls for more (like David Scheffer’s recent proposal for a third-party court for Syria), show that ad hoc, hybrid incentives did not disappear with the Rome Statute. The challenges to ICC jurisdiction in Kenya and Libya – and the increasingly assertive objections of African leaders – have exposed the illusion that we have devised a unitary, homogenous justice system suited to the varied needs of a notional international community. Global justice is ad hoc – permanently so.”
— Timothy William Waters, Professor of Law at Indiana University Maurer School of Law, and editor and co-author of The Milosevic Trial: An Autopsy (2014)

“Over past decades, international criminal justice has produced diverse political and social effects in the countries and communities where it intervened, either directly through investigations and trials or indirectly through the threat of investigations. But the international system is still at the beginning of a new era of interaction between domestic and international justice. International interventions remain contested because they are removed from broader socio-political concerns that are at the heart of societal priorities in conflict and post-conflict settings. Fundamental dimensions, such as the process of internalizing international concepts in the domestic realm, and most fundamentally, the ‘translation’ of justice into local concepts, language, or culture remain underdeveloped. There is need for a better nexus between three core dimensions in justice strategies: ‘institutional response’, ‘translation’, and domestic ‘reception’. Criticisms relating to selectivity, Western agendas or implicit biases of international justice are too easily discarded by quantitative justifications (e.g., gravity calculations), resource problems or formal notions of consent. This has created a push for new initiatives and responses at the domestic and regional level (e.g., criminal jurisdiction of the African Court on Human and Peoples’ Rights). International justice remains vital but needs to be re-thought. Core challenges include: (i) the need to devise accountability goals and models more carefully in light of their impact on local interests and realities of conflict, (ii) greater care in assessing the practicability and possibility of burden-sharing with domestic institutions, (iii) greater sensitivity to the empowering and disempowering effects of ICC intervention in situation countries, and (iv) the need for a better nexus between justice intervention and development strategies.”
— Carsten Stahn, Professor of International Criminal Law and Global Justice, Leiden University, and Editor of The Law and Practice of the International Criminal Court (2015), and Jus Post Bellum: Mapping the Normative Foundations (2014)

“The central issue confronting international criminal justice today is: at what level of governance should issues of global justice be decided? This question is confronted by the International Criminal Court but also more broadly as a global matter where there are evolving norms of universality which mean that serious crimes can be prosecuted in a number of jurisdictions, domestic, i.e. where the crime may have occurred but also in other countries where there are other ties, such as the nationality of victims, etc., or another nexus.

“The principle of ‘complementarity’ is appealing because it offers guidance in the general rule of the priority of the local, where the international plays a gap-filling role; namely in the language of the Rome treaty, contemplating international intervention only where the relevant state ‘is unwilling and unable’, i.e. where capacity to apply justice is unavailable and/or no will exists. In the words of the Rome Treaty Preamble, its aegis ‘shall be complementary to national criminal jurisdictions’, which is defined later on to mean that cases would be inadmissible internationally ‘unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.’

“But the simplicity of the rule as stated belies the complexity of the normative question. Hence, recent illustrations raised by, for example, the referral of the Libya situation and case of Saif Quaddafi shows us that willingness without capacity for a fair trial can result in risking an international imprimatur on sham or show trials; and by contrast in the case of ICC prosecutions relating to Kenya’s post election violence, where capacity exists, without related willingness, in light of regime change, may well require dynamic evaluation of the timing of international judicial intervention. So long as there are no ongoing human rights violations.

“When it comes to global justice, what makes for institutional legitimacy may well be a relative matter, requiring a nuanced analysis in both law and politics.”
— Ruti G. Teitel, Ernst C. Stiefel Professor of Comparative Law, New York Law School, Visiting Fellow, London School of Economics, and author of Globalizing Transitional Justice: Contemporary Essays (2014), Humanity’s Law (Hardback 2011; Paperback 2013), and Transitional Justice (Hardback 2000; Paperback 2002)

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